Summary: The Council should have considered its section 19 duty to Mr X’s child, Z, a year earlier than it did. Its failure to do so caused a period of uncertainty about what education Z should have received and later, two terms of avoidable missed provision. The Council also delayed by 38 weeks in concluding Z’s Education, Health and Care (EHC) Needs Assessment. To recognise the injustice caused, the Council has agreed to pay Mr X £3,050 and carry out service improvements.

The complaint

1. Mr X complains the Council significantly delayed carrying out his child, Z’s, Education, Health and Care (EHC) Needs Assessment which was first applied for in 2022.
2. He complains that as a result, the family had to home educate Z, as their needs could not be met in a mainstream school. Mr X said this has been stressful for the family and caused Mr X to lose earnings from employment.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered the information provided by Mr X and the Council.
8. I considered the relevant law and guidance as set out below.
9. I considered our Guidance on Remedies.
10. I considered all comments made by Mr X and the Council on draft decisions making a final decision.

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What I found

Law and guidance

Education Health and Care Plans

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.

Education, Health and Care Needs Assessments

12. To decide whether a child or young person needs an EHC Plan, councils will carry out an EHC Needs Assessment.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment; and
• the whole process from the point an assessment is requested until a final EHC Plan is issued must take no more than 20 weeks.

14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes but is not limited to: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). 
15. Those consulted have a maximum of six weeks to provide the advice. 
16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.

Section 19 duty (alternative provision)

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Elective home education

19. Parents have a right to educate their children at home (Section 7, Education Act 1996). There is guidance setting out how this type of home education should be approached by councils (Elective Home Education, Departmental guidance for local authorities, April 2019).
20. Councils do not regulate home education and the primary responsibility remains with the parent. However the 2019 guidance says councils have a social and moral duty to ensure that a child is safe and being suitably educated.
21. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

What happened

EHC Needs Assessment

22. Z attended a mainstream school. Several weeks into the new school year in September 2022, Mr X withdrew Z as he was concerned the school was unable to meet their needs.
23. Mr X formally notified the Council on 10 October 2022 that he would be electively home educating Z. In his letter to the Council Mr X did not say this was due to concerns around the education Z was receiving.
24. Mr X asked the Council to carry out an EHC needs assessment for Z on 25 October 2022. Within this assessment request, Mr X said:
25. “We withdrew (Z) from school following school being the wrong setting for (Z) and (Z) needing higher levels of support. (Z) is currently under CAMHs for an ASD assessment.”
26. The Council decided to assess Z for an EHC Plan on 2 February 2023, fourteen weeks after the initial request. The Council sought EP advice on that day. The EP provided its report ten weeks later. The EP report also noted that Mr X had withdrawn Z due to concerns about how Z’s needs were being met in school and their concern that Z needed a higher level of support.
27. Mr X asked the Council to update him on progress several times in May and June 2023 but the Council did not respond.
28. Mr X raised a formal complaint in late July. In his complaint he said Z’s EHC Plan was significantly delayed and the family were struggling to continue the elective home education. In this complaint Mr X again informed the Council they had begun home education not out of preference, but because of the problems Z had at their mainstream school. Mr X also raised concerns about the lack of communication from his caseworker.
29. The Council responded to Mr X’s complaint late and apologised for its delay in responding. The Council upheld his complaints about the delays in the process and poor communication and apologised.
30. The Council issued several draft EHC Plans for Mr X’s comments from early September. In October the Council agreed a draft version of the EHC Plan with Mr X and it consulted a specialist school. The school did not respond by the given deadline and when it did it had queries regarding funding.
31. The Council answered the school’s questions in November and in the meantime started consulting tutoring services for Z. The school later confirmed it was full for that academic year but Z could start the following year. The Council did not provide Mr X with some key updates regarding its progress with consultations.
32. The Council issued a final EHC Plan for Z on 12 December 2023. The Council took in total 58 weeks to finalise Z’s EHC Plan from the date of Mr X’s initial request. The legal timeframe to complete the process is twenty weeks.
33. Z accessed alternative provision in the form of home tuition from December 2023 and this continued until Z started at the specialist school in September 2024.
34. Since Mr X brought his complaint to the Ombudsman, the Council has offered to pay a financial remedy to Mr X in recognition of the impact of the issues raised in his complaint.

My findings

Delayed EHC Needs Assessment

35. The Council should have taken no more than twenty weeks to conclude its EHC Needs Assessment for Z. The Council instead took 58 weeks.
36. There was a slight delay by the EP in providing their advice. However the majority of the delay was due to the Council letting the case drift. It did this at the earliest stage when it took several months to decide whether to assess Z and again in the period after it obtained the EP advice.
37. The Council has apologised and agreed that it significantly and avoidably delayed carrying out the EHC Needs Assessment in this case.

Section 19 duty to consider alternative provision

38. The Council has also accepted that once it knew Mr X had only decided to home educate Z due to concerns around Z’s mainstream education being able to meet their needs, it should have considered whether Z required alternative provision, in line with its section 19 duty.
39. Mr X first informed the Council of his reasons for choosing elective home education in his request for an EHC Needs Assessment dated 25 October 2022. The Council failed to consider its section 19 duty from this date onwards and instead only considered it from late November 2023. This was fault.

Injustice caused

40. We cannot say, even on balance, what education Z should have received before the EP report was issued on 13 April 2023, as this set out his special educational needs and what would be needed to meet them. Instead, between 25 October 2022 and 13 April 2023, Mr X has been caused uncertainty about what education his child could have been receiving during that time if the Council considered its section 19 duty earlier. This uncertainty is an injustice to him and to Z.
41. Once the Council considered its section 19 duty in late November 2023, it decided Z required home tuition while waiting for the EHC Plan to be finalised. This continued until a specialist school placement was found. From 13 April 2023 to late November 2023, if the Council had acted without fault, on balance Z would have had home tuition in place during this time. This period of missed provision is a further injustice to Mr X and Z.
42. Our Guidance on Remedies recommends different payment scales for different types of injustice – missed education provision is remedied more highly than uncertainty. This is reflected in the recommended actions listed below.

Poor communication and delayed complaint handling

43. Mr X contacted the Council multiple times to seek updates on Z’s EHC Needs Assessment and did not receive responses. On several occasions the Council failed to provide him with key updates. The Council was also more than two weeks late responding to his stage one complaint.
44. The Council has apologised, accepted its communication with Mr X was poor and that this caused him further frustration and uncertainty.

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Agreed action

45. Within one month of the date of the final decision, the Council has agreed to:
1. Pay Mr X £250 to recognise the frustration and uncertainty he experienced due to the Council’s delays and poor communication;
2. Pay Mr X £400 to recognize the uncertainty about what education Z could have received between October 2022 and April 2023; and
3. Pay Mr X £2,400 to reflect the two terms of missed education Z avoidably experienced between April 2023 and late November 2023.
46. Within three months of the date of the final decision the Council has agreed to:
1. Demonstrate that it has reviewed what led to the delays by the casework team in progressing this EHC Needs Assessment and provide details of an action plan to prevent the same issues affecting other families; and
2. Provide details of action it has taken, or intends to take, to improve its communication with parents and young people;
3. Provide details of action it has taken, or intends to take, to manage any systemic delays in investigating complaints about its SEND service; and
4. Remind all SEND staff that if they become aware that a parent has electively home educated their child, or intends to, not for reasons of preference but because of concerns their current education is not meeting their child’s needs, that the Council must consider whether it owes the child a section 19 duty.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to pay a financial remedy and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman